Considered and decided by Dietzen, Presiding Judge; Hudson, Judge; and Collins, Judge.

U N P U B L I S H E D O P I N I O N

COLLINS, Judge

On appeal from a district-court
order denying his postconviction petition, appellant argues that (1) he is
entitled to relief under Blakely and Apprendi, and (2) his claims of
ineffective assistance of counsel and incorrect calculation of his criminal-history
score should not be barred by the Knaffla
rule. We affirm.

FACTS

In December 1999, appellant Scott Andrew Kohser
was charged with first-degree burglary, false imprisonment, felony theft of a
motor vehicle, and fleeing a peace officer in a motor vehicle. Following a mistrial and denial of his motion
for dismissal of the complaint on the ground of double jeopardy, appellant waived
a jury and proceeded with a bench trial on stipulated facts. The district court found appellant guilty of the
burglary, theft, and fleeing charges, and he was acquitted of the charge of
false imprisonment. On August 4, 2000,
the district court imposed a sentence of 150 months,[1]
after finding appellant to be a career-offender and determining that the victim’s
advanced age and vulnerability were aggravating factors.

Appellant raises a number of issues alleging that the
district court erred in denying his motion for postconviction relief.“A petition for postconviction relief is a
collateral attack on a conviction that carries a presumption of
regularity.” Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004). We will not disturb the decision of a postconviction
court absent an abuse of discretion. Dukes
v. State, 621 N.W.2d 246,
251 (Minn.
2001). But this court reviews de novo
questions of law presented in a postconviction proceeding. Schleicher v. State, 718 N.W.2d 440, 445 (Minn. 2006).

A petitioner
seeking postconviction relief has the burden of establishing by “a fair
preponderance of the evidence” the facts alleged in the petition. Minn. Stat. § 590.04, subd. 3 (2004). To meet this burden, the postconviction
petitioner’s allegations “must be supported by more than mere argumentative
assertions that lack factual support.” Powers
v. State, 695 N.W.2d 371,
374 (Minn.
2005).

I.

Appellant contends that he is entitled to retroactive
relief under Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004).
We disagree. In Blakely,
the Supreme Court held that the greatest sentence that a judge may impose is
“the maximum sentence [that may be imposed] solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124
S. Ct. at 2537 (emphasis in original). A defendant has a Sixth Amendment right to a
jury determination of the existence of any fact, except the fact of a prior
conviction that increases the sentence above this maximum. Id.
at 313, 124 S. Ct. at 2543; Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).

“Unless they fall
within an exception to the general rule, new constitutional rules of criminal
procedure will not be applicable to those cases which have become final before
the new rules are announced.” Teague
v. Lane, 489 U.S. 288, 310, 109 S. Ct.
1060, 1075 (1989). A case becomes final
when “the availability of direct appeal has been exhausted, the time for a
petition for certiorari has elapsed or a petition for certiorari with the
United States Supreme Court has been filed and finally denied.” O’Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004). Here, appellant’s case became final in early
2002, well before June 2004 when Blakely
was decided. See State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005) (stating that Blakely
announced new rule of constitutional law not subject to retroactive application
on collateral review).

Appellant argues
that Blakely did not announce a new rule of constitutional criminal
procedure because it was dictated by the Supreme Court’s decision in Apprendi,
and therefore the Blakely rule dates back to Apprendi, which was
decided in 2000, before his direct appeal was exhausted. But this argument was rejected by the
Minnesota Supreme Court in State v. Houston, 702 N.W.2d 268, 273 (Minn.
2005). There, the supreme court held
that Blakely is a new rule of constitutional criminal procedure that
only applies retroactively to cases pending on direct review when Blakely
was filed, not a “watershed” new rule of constitutional criminalprocedure
requiring full retroactivity. 702 N.W.2d
at 273-74. As such, Blakely does
not apply to appellant’s collateral attack of his sentence, which was final
before Blakely was announced. Seeid.

II.

Appellant next argues for relief under Apprendi, in which the Supreme Court
held that any fact “other than the fact of a prior conviction, that increases
the penalty for an offense beyond the prescribed statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt.” 530 U.S.
at 490, 120 S. Ct. at 2362-63. The Minnesota Supreme Court noted this
language and stated that “[p]rior to Blakely, ‘statutory maximum’ was
generally thought to mean the heaviest penalty a court could impose on a
defendant─the ceiling of the relevant statutory sentencing range.” Houston,
702 N.W.2d at 271; see Harris v. United States, 536 U.S. 545, 562-63, 122 S. Ct. 2406 (2002) (concluding that
mandatory minimum sentencing statute did not raise Apprendi concerns
because statute did not increase penalty for offense beyond prescribed
statutory maximum).

Here, appellant’s
sentence of 150 months was significantly greater than the 57-month presumptive guideline
sentence but well within the 240-month statutory maximum. Because the sentence did not exceed the
statutory maximum, it did not violate Supreme Court’s ruling in Apprendi as it was understood at the
time of appellant’s direct appeal.
Moreover, because the sentence did not exceed the statutory maximum, and
appellant’s case was not pending at the time Blakely was decided, the aggravating factors on which the upward
departure was based did not require jury determination.

III.

In
State v. Knaffla, our supreme court
held that “where direct appeal has once been taken, all matters raised therein,
and all claims known but not raised, will not be considered upon a subsequent
petition for post-conviction relief.”
309 Minn.
246, 252, 243 N.W.2d 737, 741 (1976).
This rule has been consistently adhered to by the Minnesota Supreme
Court. See, e.g.,Sessions v. State,
666 N.W.2d 718 (Minn. 2003); Roby v. State, 531 N.W.2d 482 (Minn. 1995); Miller
v. State, 531 N.W.2d 491 (Minn.
1995). However, the following exceptions
apply to the Knaffla rule: (1) a claim that is so novel that the legal
basis was not available on direct appeal; or (2) the interests of justice
require it. White v. State, 711 N.W.2d 106, 109 (Minn. 2006).
The second exception is limited to instances when fairness requires
consideration of such a claim, and the petitioner did not “deliberately and
inexcusably” fail to raise it on direct appeal.
Id.Fox v. State, 474 N.W.2d 821,
825 (Minn.
1991). Further, this court has
discretion to address any issue as justice requires. Minn.
R. Civ. App. P. 103.04.

Here, appellant argues that his
claims of ineffective assistance of counsel and incorrect calculation of his
criminal-history score should not be barred by Knaffla.

A. Ineffective
assistance of counsel

In his 2001 direct appeal, appellant
raised a claim of ineffective assistance of counsel. Kohser,
2001 WL 969024, at *6. This court rejected the claim as unsupported because appellant
failed to show that (1) counsel’s performance fell below an objective standard
of reasonableness, and (2) a different outcome would have resulted at trial
were it not for counsel’s performance. Id.

Appellant
presented a similar claim in his 2003 petition for postconviction relief, which
was rejected by the district court. On
appeal, this court held that appellant’s purported new evidence regarding
ineffective assistance of his retained counsel at his bench trial and on appeal
was not supported by fact or material to the discovery of new evidence or the
outcome of his trial. Kohser, 2005 WL 3370861, at *3. We further stated that “absent new
relevant evidence, appellant’s arguments of ineffective assistance of counsel
by his public defender[2] are barred
and do not need to be considered on appeal.”
Id. at *4.

Allegations
underlying an ineffective-assistance-of-counsel claim must be more than
argumentative assertions without factual support. Hodgson
v. State, 540 N.W.2d 515, 517 (Minn.
1995). Once again, appellant fails to raise
any new claims of ineffective assistance of counsel that are supported by fact
or material to the discovery of new evidence or the outcome of trial. He does no more than insist that this court
and the postconviction court erred by not granting relief on his previous similar
claims. Because appellant’s claims of
ineffective assistance of counsel have already been twice considered by this
court, and he has not brought forth any new evidence or material facts to
support these claims, we conclude that they are barred by Knaffla.

B. Incorrect calculation of appellant’s criminal-
history score

Finally, appellant
argues that the criminal-history score attributed to him in determining his
presumptive sentence was incorrect.
Appellant claims that the state asserted that appellant had a criminal-history
score of 7. He notes that “factually,
[appellant’s] criminal history score is 5, not 7 or 6 as the sentencing court
believed.” Appellant seems to contend that
when the district court imposed the upward departure, it did so out of
confusion as to his criminal record and criminal-history score. He argues that had his criminal-history score
been correctly calculated, the court would not have departed from the
presumptive sentence.

We disagree. Appellant fails to present factual support
for his claim that the sentencing worksheet prepared by the corrections
department and filed prior to the sentencing hearing on August 4, 2000,
contained incorrect information relating to either his criminal record or his
criminal-history score. The sentencing
court alluded to the presumptive sentence under the guidelines, but, following
the determination that appellant is a career offender and citing additional
aggravating factors, the court deliberately chose to depart from the
guidelines. Appellant’s argument that an
incorrect criminal-history score was a determining factor in the departure from
the sentencing guidelines is unsupported and without merit. Moreover, because appellant knew or should
have known at the time of sentencing and before his direct appeal what criminal-history
score was applied in the calculation of the presumptive sentence, his claim is
barred under Knaffla. See
Knaffla, 309 Minn.
at 252, 243 N.W.2d at 741.

Affirmed.

* Retired judge of the
district court, serving as judge of the Court of Appeals by appointment
pursuant to Minn. Const. art. VI, § 10.

[1] Under Minnesota
Sentencing Guidelines, the most serious crime, first-degree burglary, was
ranked at severity-level six. Appellant
had five felony points and 1 custody status point for a total criminal-history
score of six. The presumptive sentence was
57 months. The statutory maximum
sentence was 240 months. Minn. Stat. §
609.582, subd. 1(a) (1998).

[2] Appellant was
represented by a public defender at his first trial before a mistrial was
declared.